Opposition Brief — Central Bank of Tampa v. Transamerica Insurance Group

a= oe eS

No. 92-445 | OCT 9 1992

| OF FOE THE CLERK

In The Ls —

Supreme Court of the United States

+

October Term, 1992

CENTRAL BANK OF TAMPA, f/u/b/o R.W. MASHBURN,

LAMAS ORIENTAL FOODS, INC. AND LAMAS, INC.,

Petitioner,

vs.

TRANSAMERICA INSURANCE GROUP,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

LEE CRAIG

BUTLER, BURNETTE & PAPPAS

Attorneys for Respondent

e @\ Ta Bayport Plaza, Suite 1100

—« i 6200 Courtney Campbell Causeway

= Tampa, Florida 33607-1458

— ‘ie (813) 281-1900

—

—

C79 Bats Ls (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

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co

ES ae eT eR Se TS |

QUESTIONS PRESENTED

I. Does the Eleventh Circuit’s affirmance of the trial court’s

admission of certain evidence under Rule 803(5), Federal Rules of

Evidence, conflict with any decision of any other circuit?

IJ. Did the admission of certain evidence pursuant to Rule

803(5), Federal Rules of Evidence. by the trial court, or the

affirmance of this ruling by the Eleventh Circuit, constitute a

departure from the accepted and usual course of judicial

proceedings, pursuant to Rule 10, Supreme Court Rules. so as to

invoke the discretionary jurisdiction of this Court?

III. Did the trial court’s admission of certain evidence under

Rule 803(5), Federal Ruies of Evidence. deny petitioner any right

of due process?

TABLE OF CONTENTS

Page

Questions Presented .............. Frere re ree ree

Table of Comtemts . 5.65.50 5-5 ee ee 1]

Table of Citations. ....¢...00 ye eee ill

Statement of the Case... G5 eee l

Summary of Reasons for Denying the Writ ............ 5

Reasons for Denying the Writ ........................ 6

I. There is no conflict between the Eleventh Circuit’s

holding and any decision of any other circuit... .. 6

A. Background to Rule 803(5)................ 6

B. The Eleventh Circuit’s Holding Does Not

Conflict with any Decision of any Other Circuit. 8

I]. There was no departure from usua! course of

proceedings requiring correction by this Court....- 15

III. The petitioner’s due process rights were not violated

Dy the trial] comm. 5.2.5... aa. ee

CORCIUSION . oo. a accca ne eee eee aa 17

lil

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th

te es oka Vv sd oe kaney ecu ce iy Ag

Dickinson Supply, Inc. v. Montana-Dakota Utilities Co., 423

pe Eo 8, 9

Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970)

(PAN aS ig RTE ae eo 12

Goings v. United States, 377 F.2d 753 (8th Cir. 1967)

OS SES RS i rr ae eee 9

In re Corrugated Container Antitrust Litigation, 756 F.2d

eS RS ee ee hae Cae

O’Malley v. United States Fidelity and Guaranty Co., 776

er 9, 10

Schlagenhauf v. Holder, 379 U.S. 104 (1964).......... 16, 17

Society Internationale, Etc. v. Rogers, 357 U.S. 197 (1958)

Contents

Page

United States v. Patterson, 678 F.2d 774 (9th Cir. 1982)

United States v. Schwartz, 390 F.2d 1 (3rd Cir. 1968)

United States v. Senak, 527 F.2d 129 (7th Cir. 1975), cert.

denied, 425 U.S. 907 (1976) ................ 7

United States v. Williams, 571 F.2d 344 (6th Cir. 1978)

Pe IE ee ee tink ark Ci are i Pe

Rules Cited:

ures Cowrt Bult 10s ce ie ek: Cece irises Pal

Federal Rule of Civil Procedure 37(b) 16

Federal Rule of Evidence 803(5)........... . passim

Other Authorities Cited:

3 Wigmore on Evidence, § 747 (Chadbourn Rev. 1970)

14

11 Moore’s Federal Practive, Art. VII, p. 110 13

APPENDIX

Appendix A la

l

No. 92-445

In The

Supreme Court of the United States

oven we

October Term, 1992

CENTRAL BANK OF TAMPA, f/u/b/o R.W. MASHBURN.,

LAMAS ORIENTAL FOODS, INC. and LAMAS, INC..

Petitioner.

VS.

TRANSAMERICA INSURANCE GROUP,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Plaintiff and appellant below, and petitioner in this Court.

Central Bank of Tampa (Central Bank), sued Transamerica

Insurance Group (Transamerica), to establish coverage under a

certain policy of fire insurance issued by Transamerica for which

to

Central Bank was a beneficiary. Transamerica answered the

complaint, alleging the policy had been cancelled prior to the fire.

Transamerica moved for summary judgment and supported its

motion with the affidavit of a former Transamerica employee, Judy

Garrabrant. In that affidavit, Garrabrant swore that she had

prepared and mailed a Notice of Cancellation to Central Bank and

three other interested entities at their addresses. Transamerica’s

motion for summary judgment was denied and the action went to

trial by jury. At trial, Transamerica stipulated to all elements of

Central Bank’s case-in-chief and the parties agreed on the major

elements of damages. The case was tried solely on the affirmative

defense that the policy had been cancelled by Transamerica prior to

the fire.

In its case, Transamerica called Garrabrant to the stand.

Through Garrabrant’s testimony, Transamerica established that:

1. Garrabrant had executed the affidavit submitted in support

of the Motion for Summary Judgment;

2. Garrabrant had knowledge and recollection of the contents

of the affidavit when she executed it. But, she did not have

sufficient recollection currently to testify fully and accurately to

the matters set forth in the affidavit;

3. The contents of the affidavit were fresh in Garrabrant’s

memory at the time she executed the affidavit;

4. The affidavit correctly reflected Garrabrant’s knowledge

when she executed it;

5. Garrabrant would not have executed the affidavit if it were

not true.

3

The pertinent portions of Garrabrant’s testimony are set out in

the appendix. Petitioner took full opportunity to cross-examine

Garrabrant, and the court also inquired as to the witness’

recollection. Transamerica moved to have the contents of the

affidavit accepted as recorded recollection under Federal Rule of

Evidence 803(5) and read to the jury. Central Bank objected

chiefly on the basis the witness’ knowledge was not fresh when

recorded. The trial court overruled the objection and the affidavit

was read to the jury. The jury found Garrabrant credible, accepted

her testimony and returned a verdict for Transamerica.

The pertinent dates are as follows: Garrabrant prepared and

mailed the cancellation notices on June 3, 1986. The fire occurred

on June 29, 1986. Garrabrant executed the affidavit on September

18, 1987. Garrabrant testified at trial on January 28, 1991.

Central Bank appealed the verdict to the Eleventh Circuit

arguing, in pertinent part, as follows:

The court erred in permitting this hearsay statement to be

admitted as substantive evidence because:

|. The pertinent fact was not recorded by the

witness but by the unidentified person or

persons who prepared the affidavit fifteen (15)

months after the event.

i)

The address of the Bank did not appear in the

Notice and there was no evidence regarding its

source, except that it obviously was not

obtained from the witness or the Notice.

3. It could not be pretended, and the witness

didn’t pretend, that she remembered on

September 18, 1987, the exact addresses of

4

three entities in Tampa, Florida to whom she

allegedly mailed copies of a Notice fifteen

(15) months earlier in another employment.

4. The affidavit was prepared for the purpose of

supporting the Insurance Company’s defense

of cancellation by an attorney or other

knowledgeable agent after the filing of the

action on the policy.

Additionally, the extreme unreliability of the affidavit as

substantive evidence, even if it were admissible in

corroboration, precludes its sufficiency to carry Defendant’s

burden of_proof as the only evidence offered on the issue.

Initial Brief of Appellant Central Bank in the Eleventh Circuit.

The Eleventh Circuit affirmed, concluding in its unpublished

opinion that each of the prerequisites for admission of Garrabrant’s

recorded recollection under Fed. R. Evid. 803(5) was satisfied. All

other issues on appeal, including the attack on the sufficiency of

the evidence, were summarily dismissed for want of merit. This

petition of Central Bank followed.

Petitioner states in its petition that Garrabrant’s affidavit was

“fabricated” and submitted at trial with intent to deceive the trial

court and jury. This is not true. Petitioner’s Statement of Questions

Presented gives the impression the trial court found, as a matter of

fact or law, that Garrabrant’s affidavit was fabricated and false and

yet allowed it as evidence to establish an essential fact at trial, and

further, that the Eleventh Circuit affirmed this imagined

procedure.

Petitioner misleads this Court by giving this impression. The

facts are as follows: Transamerica called affiant Garrabrant to the

eg

2

stand and laid a foundation pursuant to Rule 803(5) to publish the

affidavit to the jury. Petitioner cross-examined affiant as to the

freshness of her recollection and objected to the publication on the

basis her recollection was not fresh. The trial court found a proper

foundation was set and overruled the objection. The jury found

Garrabrant credible and accepted her testimony. The Eleventh

Circuit found no error.

Thus, the only judicial determinations as to the status of the

affidavit are the trial and appellate courts’ rulings that the affidavit

is admissible evidence; further, there has been Only one

determination of the truth of the affidavit, and that is the jury’s

verdict finding the contents of the affidavit to be true. There is no

basis for petitioner to characterize this evidence as “fabricated”

and false and claim that the respondent and the trial and appellate

courts knew it to be such.

SUMMARY OF REASONS FOR DENYING THE WRIT

This Court need not review the Eleventh Circuit’s holding that

the trial court committed no error in admitting the recorded

recollection under Fed. R. Evid. 803(5). The trial court considered

the prerequisites for admission of this evidence as set out in Rule

803(5)and found that the evidence adduced from Garrabrant

provided a sufficient foundation for its admission. Facts Casting

doubt on the ability of the declarant to recall the matter go to the

weight of the evidence but not its admissibility. It was for the jury

to weigh the evidence. The Eleventh Circuit’s relatively simple

task on appeal was to compare the evidence adduced to the

requirements of Rule 803(5); its holding that sufficient evidence

was presented to admit the evidence for the jury’s consideration is

supported by the record and does not conflict with any decision of

any other circuit.

Therefore, the trial and appellate courts’ actions do not

6

constitute a departure from the usual course of proceedings under

Supreme Court Rule 10.

The due process clause of the Constitution is not involved in

this case as the power of the court was not used to deny the

petitioner of any property interest.

Petitioner petitions this Court to review the trial judge’s

discretionary ruling to admit certain’ evidence. This

straightforward issue, addressed and resolved in the Eleventh

Circuit, is not a proper one for this Court’s consideration.

REASONS FOR DENYING THE WRIT

I.

THERE IS NO CONFLICT BETWEEN THE

ELEVENTH CIRCUIT’S HOLDING AND ANY DECISION

OF ANY OTHER CIRCUIT.

A. Background to Rule 803(5).

Federal Ruie of Evidence 803(5) provides for the admission of

certain hearsay evidence where that evidence constitutes

“recorded recollection.” Recorded recollection is defined in the

rule asa

1. memorandum or record concerning a matter;

2. about which a witness once had knowledge but now has

insufficient recollection to enable the witness to testify fully and

accurately;

3. shown to have been made or adopted by the witness when

the matter was fresh in the witness’ memory;

:

4. and to reflect that knowledge correctly.

The trial court exercises its discretion to determine if these

four foundation requirements are satisfied. United States y.

Patterson, 678 F.2d 774 (9th Cir. 1982). As the court explains:

[A] district judge’s ruling to admit evidence

will not be overturned absent abuse of

discretion. [citations omitted.] The trial judge

has broad discretion in determining whether

evidence is supported by proper foundation

..- Broad discretion for the trial judge is

clearly intended under Fed. R. Evid. 803(5), as

the advisory committee notes indicate: “No

attempt is made in the exception to spell out

the method of establishing the initial

knowledge or the contemporaniety and

accuracy of the record, leaving them to be

dealt with as the circumstances of the

particular case might indicate.”

Id. at 778-779.

Once the trial judge determines that sufficient evidence has

been provided as to the four elements of the foundation to allow

presentation of the evidence to the jury, the contents of tie

memorandum are read into evidence. The document itself is not

received. The truth of the contents is determined by the trier of fact.

Facts casting doubt on the ability of the declarant to recall the

matters in question go to the weight of the testimony, but do not

preclude admission of the statement. United States v. Williams, 571

F.2d 344, 349 (6th Cir. 1978). See also United States y. Senak, 527

F.2d 129, 139 (7th Cir. 1975), cert. denied, 425 U.S. 907 (1976)

(party opposed admission of recorded recollection on the grounds

er

that matter was not fresh in declarant’s mind when recorded; full

cross-examination allowed on this point and court holds that issue

of freshness was one that goes to the weight of the evidence and not

its admissibility); and see also, United States v. Edwards, 539 F.2d

689, 692 (9th Cir. 1976) (veracity and freshness of declarant’s

statements, when made or adopted, are subjects for impeachment

by cross-examination before the jury; statement need not be

recorded at time of event and there is no time limit for declarant to

have accurate recollection; the trial judge must be free to consider,

on a case-by-case basis, whether or not to admit the evidence).

B. The Eleventh Circuit’s holding does not conflict with any

decision of any other circuit.

Petitioner urges the Eleventh Circuit’s holding on the

application of Rule 803(5) conflicts with eight decisions from

other circuits. The petitioner is wrong, no conflict is demonstrated.

All eight cases were cited by petitioner in its appellate brief to, and

therefore were considered by, the Eleventh Circuit. The purported

conflict for each case is addressed in turn:

1. Dickinson Supply, Inc. v. Montana-Dakota Utilities Co.,

423 F.2d 106 (8th Cir. 1970). This case is cited by petitioner for the

proposition that a witness’ signature on a statement does not satisfy

the requirement that the witness’ memory be fresh when the

recollection is recorded.

Dickinson dealt with a witness who allegedly gave a statement

to a fire marshal. At trial this witness denied making the statement

and specifically denied the truth of the matters contained in the

statement but he admitted his signature on the statement. The trial

court allowed this statement to be received as substantive evidence

over the witness’ denials. This ruling was reversed on appeal. This

case actually stands for the proposition that where the declarant

specifically denies the truth of the recorded recollection, the

9

evidence cannot be received. /d. at 109, n.1. In light of this denial,

the court held the mere signing of a document is not enough to

establish its truthfulness and admissibility. The instant case

contains no such problem as the declarant, Garrabrant.

acknowledged she executed and adopted the statement and

resolutely claimed the statement to be truthful. Dickinson does not

preclude the result reached in this case. There is no conflict.

2. Goings v. United States, 377 F.2d 753 (8th Cir. 1967). This

case is cited by petitioner apparently for the proposition that even

where the declarant admits the truthfulness of the recorded

recollection, it is error to admit the recorded recollection because

to do so would allow trial by prepared statements.

Goings is acriminal case that expressly does not deal with past

recollection recorded. /d. at 760, n.8. The government, in Goings,

introduced the contents of a prior signed statement of a hostile

witness under the guise of refreshing the witness’ recollection. The

Eighth Circuit held that introducing the prior statement by this

subterfuge was error. The Eighth Circuit clearly and deliberately

distinguished the recorded recollection rule, Rule 803(5), from the

issue in Goings. Therefore, Goings is not relevant to the instant

case.

3. O'Malley v. U.S. Fidelity and Guarantee Co., 776 F.2d 494

(Sth Cir. 1985). Petitioner apparently cites this case for the

proposition that if the declarant testifies that he does not remember

reading the recorded recollection, it must be rejected.

O'Malley actually speaks to the final requirement of Rule

803(S) stated above, that the recorded recollection be accurate. In

this case, the Fifth Circuit held if the witness did not write the

recording, he must at least testify that he read it and found it to be

accurate. /d. at 500. In O’Mailey, the witness could not do so as he

had not read the report. /d. In this case, it is not contended

10

Garrabrant did not read the affidavit before signing it. To the

contrary, Garrabrant testified that when she executed the affidavit,

her memory of the facts was fresh and the contents of the affidavit

were correct. Thus, the reason for rejecting the recorded

recollection in O’Malley does not exist in this case.

4. Inre: Corrugated Container Antitrust Litigation, 756 F.2d

411 (Sth Cir. 1985). Petitioner cites this case for the proposition

that the affidavit, the recorded recollection, should have been

rejected because there was not specific testimony that the

recording reflected the witness’ knowledge correctly when the

matter was fresh in memory. While this may be a correct reading of

the cited case, it has no application to this case. Garrabrant

specifically testified that the affidavit correctly reflected her

knowledge when the matter was fresh in her memory. See

testimony set forth in appendix.

5. United States v. Judon, 567 F.2d 1289 (Sth Cir. 1978).

Petitioner cites this case for the proposition that the failure of a

witness to testify specifically that the recording correctly reflects

the witness’ knowledge when it was fresh in memory is reason for

excluding the evidence.

The Fifth Circuit ruled, in Judon, that a piece of paper witha

license tag number written on it should not have been admitted into

evidence under Rule 803(5) because no proper predicate was laid.

“In particular, there was no showing that the witness had

insufficient recollection to enable him to testify fully and

accurately at-trial.” /d. at 1294. This is the reason the Fifth Circuit

held the trial court should have excluded the recorded recollection.

The court then noted as an additional ground that the prosecution

failed to adduce specifically that the witness recorded the

recollection while the matter was fresh in his memory. /d. These

concerns do not exist in this case. Garrabrant testified specifically

both that she had no present recollection of the contents of the

1]

recording and that the recording was made when the matter was

fresh in her mind.

The Judon case also illustrates that the policy of discouraging

the use of statements “carefully prepared for purposes of litigation

under the supervision of attorneys, investigators, or claims

adjusters”, Fed. R. Evid. 803(5) advisory committee notes on 1972

proposed rules, is satisfied where the witness has insufficient

recollection to enable her to testify fully at trial. In other words, so

long as there is insufficient recollection at the time of trial, there is

no danger of a “trial by affidavit” envisioned by the petitioner. The

critical safeguard against such a danger, i.e., the failure of current

memory, is established in this case, as petitioner would readily

admit.

6. Cathey v. Johns-Manville Sales Corp., 776 F. 2d 1565 (6th

Cir. 1985). Petitioner cites this case for the proposition that

recorded recollection is not admissible under Rule 803(5) unless

made when the matter was fresh in memory. Of course, this

proposition is not in dispute. The trial judge in Cathey did not allow

the asbestos-exposed plaintiff to refresh his recollection by

referring to a list of products to which he may have been exposed.

The list was developed by plaintiff during trial for the benefit of

defendants, and was not intended to be used as a substitute for live

testimony. /d. at 1582.

The plaintiff complained on appeal that pursuant to Rule

803(5), he should have been allowed to refer to the list while

testifying. The reasons for the trial court’s actions are not manifest

from the opinion but the Sixth Circuit concluded the trial judge was

correct in not allowing the plaintiff to refer to the list. The plaintiff

was illiterate and the court stated “‘it is difficult to understand how a

written exposure list could have assisted him... .” /d. Further,

there was “little evidence to show that his exposure list correctly

reflected fresh knowledge,” /d. at 1583. Finally, “plaintiff had no

SL a

12

evidence to support the contention the list correctly reflected Mr.

Cathey’s actual exposure.” /d.

The Sixth Circuit’s affirmance of the trial judge’s ruling

highlights that it is for the trial court, as a matter of its discretion, to

evaluate the adequacy of the evidence to satisfy foundation

requirements for admission of evidence under Rule 803(5). In

Cathey, the trial court determined that an inadequate foundation

was laid. Cathey does not conflict with the case before this Court

because of the presence, in this case, of evidence that the matters

contained in the recorded recollection were, in fact, fresh in the

mind of the declarant when recorded, and that the recording was

accurate.

7. Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970).

Petitioner cites this case for the proposition that the author of the

recorded recollection, if not the declarant, must testify or the

recorded recollection is inadmissible. This is an incorrect

statement of the law and a misconstruction of Felice. The recorded

recollection in Felice was a medical record made by a physician’s

employee. The witness, the physician, could not verify the record

and did not adopt it, as provided in Rule 803(5). Thus, no

foundation was laid to admit the evidence under Rule 803(5). /d. at

196. In the instant case, while Garrabrant did not draft the affidavit,

she adopted it by signing it and swearing to the truthfulness of its

contents. Because Garrabrant adopted the statement, the evidence

was properly received. In Felice there was no adoption, and

therefore the evidence should not have been received.

The law is clear, the drafter of the recording need not testify;

only the witness who adopts the statement must testify. United

States v. Williams, 571 F.2d 344, 348 (6th Cir. 1978) (“when the

verifying witness has not prepared the report, but merely examined

it and found it to be accurate, he has adopted the report, and it is

therefore admissible”). The legislative history for adding the

13

“adoption” language to Rule 803(S5), set out in 11 Moore’s Federal

Practice, Art. VII, p. 110, and cited in Williams, supra, reveals no

requirement that the author or drafter of recorded recollection, as

well as the declarant, testify before the recording is admissible.

Petitioner cites no authority or precedent for its contrary reading of

Rule 803(5).

8. United States v. Schwartz, 390 F.2d 1 (3d Cir. 1968). The

petitioner cites this case for the proposition that where guarantees

of truthfulness are outweighed by countervailing considerations,

the recorded recollection should be excluded. There can be no

quarrel with this general proposition. But Schwartz presents no

conflict with the Eleventh Circuit’s opinion in this case. Schwartz

dealt with the admissibility of a letter drafted by one criminal co-

defendant in the trial of the second codefendant. The letter was

addressed to the judge in the first defendant’s trial. The letter

requested a lenient sentence and cast the blame for the crime on the

second co-defendant. At the trial of the second co-defendant, the

first co-defendant testified and repudiated both the accuracy of the

letter as well as his signature.

The trial court permitted the government to introduce the

letter as a prior inconsistent statement and received it as

substantive evidence. The Third Circuit reversed stating that the

guarantees of trustworthiness, i.e., that it was actually prepared by

the first co-defendant’s attorney and that the witness admitted he

would not sign something known by him to be false, were

outweighed by the circumstances that the document “was made

almost seven years after the events therein, and an obvious effort to

obtain a light sentence, not under oath, and there was no

Opportunity for cross-examination. The imminence of sentence

alone was conducive to falsification rather than to trustfulness. ”

Id. at 5-6.

Schwartz sets out no rule of law that was ignored or

14

contradicted by the Eleventh Circuit. Schwartz only points out that

the trial judge must balance the guarantees of truthfulness against

countervailing considerations. In Schwartz, the balance tipped to

exclusion. In this case, the trial judge found they tipped to

admission. The facts of the two cases are far different and Schwartz

does not command a result different than that reached in this case.

Even where the only guarantee of trustworthiness of the

accuracy of the record is the declarant’s assurance that he would

not have signed or prepared the record unless he knew it to be true,

the evidence will be admitted. 3 Wigmore, Evidence, 747

(Chadbourn Rev. 1970).

Recall that the witness must be able now to

assert that the record accurately represented

his knowledge and recollection atthe time...

In general, it is conceded that when the

witness’ certainty rests on his usual habit or

course of business in making memoranda or

records, it is sufficient . . . Here the witness is

really calling to his aid, not his specific

business custom, but his general moral

attitude; but, as a rule, the indication should be

and is treated as sufficient.

Id. The trial judge asked Garrabrant:

THE COURT: | believe you are telling us that

you would not have signed it under oath if it

were not true?

THE WITNESS: Yes, sir.

* = od

THE COURT: Well, is that because of habit,

a ARN I Ecc

15

your custom of not to sign anything that is not

factual if it’s under oath?

THE WITNESS: Yes,sir.

(T40-41)

The conclusion of Wigmore is that this assurance, standing on

its own, is legally sufficient to admit the evidence.' Once admitted

past this minimal barrier, any conflict or weakness in the

declara it’s testimony goes to the weight of the evidence.

Petitioner never demonstrated that the evidence of

trustworthiness was insufficient for admission of the recording.

Petitioner can only point to weaknesses or purported

inconsistencies in the evidence. But these weaknesses went only to

the weight of the evidence, and to this issue, the jury spoke.

Petitioner seeks to have the evidence reweighed by this Court, and

if granted certiorari, will ask this Court to do so. Because the time

for finding facts has passed, its petition should be denied.

II. There was no departure from usual course of proceedings

requiring correction by this Court.

Respondent relies on its argument in section I, supra, that the

ruling of the trial court was correct, and the affirmance by the

Eleventh Circuit proper. As such, there was no departure from

usual and ordinary course of proceeding requiring correction by

this Court pursuant to Supreme Court Rule 10.

1. In this case, the guarantees of trustworthiness went far beyond this minimal

requirement: Garrabrant unequivocally adopted the recording; swore to the truth of the

contents when she signed the affidavit; she recalled the circumstances under which she

signed the affidavit; swore the contents of the affidavit were fresh in mind when

adopted; swore the contents of the affidavit correctly reflected her then-fresh

recollection; swore she would not have executed the affidavit unless the contents were

true and correct.

16

III. The petitioner’s due process rights were not violated by the

trial court.

The petitioner contends that the trial judge’s ruling allowing

the admission of the recorded recollection denied its due process

rights. This argument is without basis. To invoke this Court’s

jurisdiction on the basis of a deprivation of constitutional right,

petitioner must show that it was deprived of a liberty or property

interest by virtue of some state action. Petitioner has been deprived

of neither by the trial court’s ruling. The cases cited by petitioner

do not support its claims.

In Societe Internationale, Etc. v. Rogers, 357 U.S. 197 (1958),

the interest involved was the plaintiff’s right to bring its action

before the court for hearing. The state action involved was che

power of the court under Fed. R. Civ. P. 37(b) to dismiss the

plaintiff’s action for failure to comply with a pre-trial discovery

order. This Court held that where such a failure is due to inability

and not to bad faith, the power of the court should not be used to

deprive a party of its right to be heard. Withholding its power to

dismiss the action was particularly appropriate in the context of the

suit, this Court held, where the federal government had seized,

without notice, certain personal property of plaintiff.

No such seizure or deprivation of process occurred in this

case. The trial court simply overruled petitioner’s objection to the

admission of certain evidence. Adverse evidentiary rulings, in

private party civil cases, are not the usual stuff of due process

violations, and this case presents no exception.

Schlagenhauf v. Holder, 379 U.S. 104 (1964), cited by

petitioner, does not involve the due process clause and presents no

basis for this Court to review the Eleventh Circuit’s decision.

Petitioner believes Schlagenhauf provides that granting a writ of

certiorari is proper where the construction or application of a

17

Federal Rule of Evidence is contested. In Schlagenhauf, this Court

granted a writ of certiorari “to review undecided questions

concerning the validity and construction of Fed. R. Civ. Pro. 35.”

Id. at 109. But there are no undecided questions regarding the

construction of Rule 803(5) raised in this case. What is contested is

the application of the rule. But the contested application of a Rule

of Evidence should not be grounds to involve this Court’s

jurisdiction. And certainly, this is not the result Schlagenhauf

provides.

The balance of cases cited by petitioner in this section are

opinions on criminal appeals. Criminal prosecutions clearly

invoke due process concerns as the state is acting to deprive the

defendants of their property and liberty interests. But no action of

the state acting to deprive the petitioner of a property interest

occurred in this case. These criminal cases are inappropriately

cited. The argument is misplaced and does not properly call for this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

LEE CRAIG

BUTLER, BURNETTE & PAPPAS

Attorneys for Respondent

la

APPENDIX A

Following are the pertinent excerpts from the trial transcript of

the examination of witness Judy Garrabrant.

[Questions by Respondent’s Counsel.]

Q. Let me show you a document which has

not been marked for identification and ask you

to examine it.

ad * -

Q. Have youreadthatdocument? A. Yes.

Sir.

Q. What is that documententitled?

1” ” *

A. Oh, title? It’s an affidavit.

* - *

Q. Does that document bear a

Signature? A. Yes, sir, itdoes.

Q. Whose signature? A. It has mine and

the witness.

Q. Are you able to identify that as your

Signature? A. Yes, sir.

Q. What is the date on that

document? A. The 18th of September,

1987.

————————————

2a

AppendixA

Q. Is that a true and accurate copy of an

affidavitsigned by youonthatdate? A. Yes,

Sir.

Q. Now, do you presently today, Ms.

Garrabrant, have sufficient recollection to

enable you to testify fully and accurately about

the matters set forth inthataffidavit? A. No,

Ido not.

Q. However, at the time you swore the

affidavit, were the matters set forth therein

fresh in your memory at this time? A. Yes,

Sif.

Q. And at the time you swore the affidavit,

did you have knowledge and recollection of the

matters set forth in that affidavit? A. Yes |

did.

Q. Since you stated that you signed that

affidavit under oath, I assume it correctly

reflects your knowledge at that time; is that a

fairstatement? A. Yes, sir, uh-huh.

[T 34-36].

Q. Forclarification, Ma'am, do you presently

recall that when you signed this affidavit, it

was true? A. At the time I signed the

affidavit, yes, I’m—I wouldn’t have signed itif

it wasn'ttrue.

[T 42].

(T 43]

~

Ja

AppendixA

[Questions by petitioner’s counsel]

Q. Do you recall the circumstances under

which you signed that affidavit? A. Yes, I

do

Q. My question was that when you say you

recall today that it was true then, is that because

itwas morerecentintime? A. Right. It was

fresher in my mind at that time, yes sir.

Q. Thantoday? A. Thantoday.

(Questions by the Court]

THE COURT: I believe you are telling us that

you would not have signed it under oath if it

were not true?

THE WITNESS: Yes, sir.

THE COURT: But you reaily have no

recollection of the factual matters that may be

contained in that affidavit?

THE WITNESS: Notatthe present time.

THE COURT: And you don’t remember

whether you remembered it at the time you

da

AppendixA

signed it?

THE WITNESS: I don’t think I would have

signed it if I didn’t remember.

THE COURT: Well is that because of habit,

your custom of not to sign anything that is not

factual if it’s under oath?

THE WITNESS: Yes, sir.

[T. 40-41]

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